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2017 DIGILAW 814 (AP)

VINS Bio-Product Pvt. Ltd. , Hyderabad v. Mastana Constructions Engineers and Contractors, Hyderabad

2017-12-05

U.DURGA PRASAD RAO

body2017
ORDER : U. Durga Prasad Rao, J. The challenge in this civil revision petition is the order dated 21.8.2017 in IA No. 1051 of 2017 in OS No. 274 of 2011 on the file of XI Additional Chief Judge, City Civil Court, Hyderabad, whereunder the learned Judge dismissed the petition filed by the defendant under Order XVIII Rule 17 read with Section 151 to CPC recall PW1 for further cross-examination to confront certain documents. 2. The respondent/plaintiff filed OS No. 274 of 2011 for a money decree and the petitioner/defendant is contesting the same. While-so, the defendant filed IA No. 1051 of 2017 to recall PW1 for further cross-examination on the ground that during earlier cross-examination before the Advocate Commissioner, he could confront only those documents which were already filed by the defendant alongwith his written statement and the counter-claim. However, during defendant's evidence, some more documents were filed. Those documents could not be confronted to PW1 during the course of cross-examination as they were filed at a later stage. Unless the subsequently filed documents were confronted to PW1 by recalling him, the defendant would be put to irreparable loss. The respondent/plaintiff opposed the petition. The trial Court in its impugned order dismissed the petition on the observation that a petition of this nature ought to have been filed before commencement of the evidence of defendant (DW1). Hence the civil revision petition. 3. Heard arguments of Sri Dishit Bhattacharjee, learned Counsel for petitioner and Sri S.A. Razak, learned Counsel for respondent. 4. Fulminating the order of the trial Court, learned Counsel for petitioner would submit that by the time of cross-examination of PW1, only some documents which were filed along with written statement were available on record and they were confronted to PW1 in his cross-examination. Then during the evidence of DW1, some more documents were filed and marked as exhibits. As those documents were not available by the time of cross-examination of PW1, they were not confronted to him. Therefore, the petition to recall PW1 was filed. Unless those documents are confronted to PW1, the defendant will be put to irreparable loss. Having regard to the fact that the suit is filed for realization of a high amount and also considering the valuable rights of the petitioner/defendant which are at stake in the suit, the petition may be allowed. 5. Unless those documents are confronted to PW1, the defendant will be put to irreparable loss. Having regard to the fact that the suit is filed for realization of a high amount and also considering the valuable rights of the petitioner/defendant which are at stake in the suit, the petition may be allowed. 5. Per contra, opposing the petition, learned Counsel for respondent would submit that PW1 was cross-examined by the defendant at length and now at this stage when the matter is posted for arguments, a recall petition which is mainly intended to fill up the gaps, cannot be permitted. He placed reliance on the decision reported in Rami Rati v. Mange Ram and others, 2016 (3) ALD 162 (SC) : AIR 2016 SC 1343 ; to canvass that a recall petition cannot be used for filling up the gaps in the earlier evidence. 6. The point for determination is: "Whether there are merits in the CRP to allow?" 7. Point: On a careful scrutiny, it must be held, the trial Court fumbled in appreciating the purpose for which the recall of PW1 was sought for. It is the clear case of defendant that during the cross-examination of PW1, only some of the documents which were filed along with the written statement could be confronted to him. However, after evidence of plaintiff was closed and during the evidence of defendant, some additional documents were filed along with DW1's chief-affidavit and they was marked as exhibits on behalf of the defendant. In this factual backdrop, the subsequently marked documents could not be confronted to PW1 during his earlier cross-examination and unless those subsequent documents are confronted to PW1 by recalling him, the petition/defendant will be put to irreparable loss. It appears, neither the trial Court nor the plaintiff did dispute the aforesaid facts. However, the trial Court dismissed the petition on the observation that if the defendant wanted to confront PW1 with his documents, he ought to have filed the present petition before commencement of his evidence (DW1). This observation is incorrect in the light of the factual position narrated supra. Since the additional documents were filed only along with the chief-affidavit of DW1, the question of filing the recall petition before the commencement of defendant's evidence does not arise. Therefore, the order of the trial Court is not sustainable. This observation is incorrect in the light of the factual position narrated supra. Since the additional documents were filed only along with the chief-affidavit of DW1, the question of filing the recall petition before the commencement of defendant's evidence does not arise. Therefore, the order of the trial Court is not sustainable. In Ram Rati's case (supra), the apex Court considered its earlier decisions on Order XVIII Rule 17 CPC to expound, when a witness can be recalled. It also discussed the question whether a witness can be recalled for further elaboration of aspects left out in the evidence which was already closed. The apex Court referred the crux of the earlier judgments to the effect that witness can be recalled to clarify any issue or doubt but he cannot be recalled to fill up the lacunae in the evidence of witness which was already recorded. Ultimately the apex Court held that recall of a witness for further elaboration on the left out points is wholly impermissible in law. 8. There is no demur regarding the above ratio. What is to be seen in this case is whether, the defendant by invoking recall of PW1 wants to fill up any lacunae in his earlier evidence or wants to make a further elaboration on the left out points. If that be his intention, certainly he does not deserve for recall of PW1. However, in my considered view, here the intention is altogether a different one. Certain documents which were subsequently filed by him during the course of his evidence were not confronted to PW1 during his cross-examination and unless those documents are confronted to PW1, he cannot establish his case. This, in my view, does not amount to either filing up the lacunae or further elaboration. It must be emphasized that every party has a right to confront his documents to the other side for admission or denial in order to establish his case. Such a right is inherent in civil administration of justice. Otherwise no party can establish his case. The Courts in such situation cannot act pedantically when valuable rights of the parties are at stake. If the Courts feel such a right is opted to be exercised belatedly, they can impose costs rather than declining to accede their supplications. 9. In the result, this civil revision petition is allowed by setting aside the impugned order. The Courts in such situation cannot act pedantically when valuable rights of the parties are at stake. If the Courts feel such a right is opted to be exercised belatedly, they can impose costs rather than declining to accede their supplications. 9. In the result, this civil revision petition is allowed by setting aside the impugned order. Consequently, IA No. 1051 of 2017 in OS No. 274 of 2011 on the file of XI Additional Chief Judge, City Civil Court, Hyderabad, is allowed on the condition of petitioner/defendant depositing costs of Rs. 2000/- (Rupees two thousand only) with City Civil Court Legal Services Authority, Hyderabad, within a week from the date of this order. On such deposit, the trial Court shall recall PW1 and fix a suitable date convenient for both parties for cross-examination, in which event, the petitioner shall complete the cross-examination on a single day. No costs. 10. As a sequel, miscellaneous applications pending, if any, shall stand closed.